CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 13 octobre 2020

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padding:1.02pt 5.03pt; vertical-align:top } .sEEAB5E1C { width:11.24%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .s6B2D5D70 { width:20.6%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .sC9463475 { width:27.44%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .sF93B332A { margin-left:36pt; text-align:justify; font-family:Arial; font-size:12pt; font-weight:bold }   THIRD SECTION CASE OF MIFSUD AND OTHERS v. MALTA (Application no. 38770/17)     JUDGMENT (Merits)   Art 1 P1 • Peaceful enjoyment of possessions • De facto expropriation • No compensation received in over forty years • Disproportionate burden Art 1 P1 • Deprivation of property • No reasonable foundation for domestic court findings that expropriation in the public interest • Principle of good governance in the context of property rights • Manifestly unreasonable sums of compensation • Excessive burden   STRASBOURG 13 October 2020 FINAL   13/01/2021     This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Mifsud and Others v. Malta, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Paul Lemmens, President,   Alena Poláčková,   María Elósegui,   Gilberto Felici,   Erik Wennerström,   Lorraine Schembri Orland,   Ana Maria Guerra Martins, judges, and Olga Chernishova, Deputy Section Registrar, Having regard to: the application (no.   38770/17) against the Republic of Malta lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by twenty-one Maltese nationals, three British nationals and five Australian nationals (see Annex for details) (“the applicants”), on 23 May 2017; the decision to give notice to the Maltese Government (“the Government”) of the complaints concerning Article 1 of Protocol No. 1 to the Convention; the choice of the Government of the United Kingdom not to make use of their right to intervene in the proceedings (Article 36 § 1 of the Convention). the parties’ observations; Having deliberated in private on 22 September 2020, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The case concerns the taking and, in connection with certain parts of the land, the eventual expropriation of the applicants’ land, which was originally used for a gas collection plant that was later dismantled, and in respect of which issues have arisen in relation to the public interest and the compensation. It raises various complaints under Article 1 of Protocol No.   1. THE FACTS 2.     The applicants’ details are set out in the Annex. The applicants were represented by Dr T. Abela, Dr I. Refalo, Dr S. Grech and Dr M.   Refalo, lawyers practising in Valletta. 3.     The Government were represented by their Agent, Dr P. Grech, Attorney General. 4.     The facts of the case, as submitted by the parties, may be summarised as follows. Background to the case 5.     The applicants are the owners of land in Qajjenza, Birzebbuġia, Malta. 6.     By means of a Presidential Declaration of 16 August 1978, published in the Government Gazette on 25 August 1978, the Government expropriated a parcel of land measuring 5,349 sq.m. owned by the applicants (or their predecessors) (hereinafter ‘Land A’). This expropriation was intended for the site to serve as an extension of the LPG filling plant or gas bottling plant (hereinafter referred to as ‘the plant’) operated by Enemalta Corporation - a Government owned entity having a monopoly over the energy provision service in Malta - whose successor is now Enemalta plc. 7.     By means of another Presidential Declaration of 16 May 1984, published in the Government Gazette of 25 of May 1984, the Government expropriated another parcel of land, owned by the applicants (or their predecessors), measuring 3,985 sq.m. (hereinafter ‘Land B’) adjacent to Land   A. This land was intended to provide a buffer zone for the plant. 8.     The Government offered 713.75 Maltese lira (MTL) for Land A and MTL 610 for Land B, by way of compensation. The applicants did not accept this amount and therefore proceedings were initiated before the Land Arbitration Board (LAB) for it to determine the compensation due. 9.     By means of two judgments of 22 January 1990 the LAB established the compensation for Land A at MTL 952 (approximately 2,218 euros (EUR)) and for Land B at MTL 800 (approximately EUR   1,863) both being considered as agricultural land. The LAB ordered that the final deeds of transfer be concluded. 10.     Nevertheless, while such judgments became final, no such deed was ever concluded and the Government never acquired the land or paid the price determined by the LAB, despite the authorities having started to use the land since its de facto taking. Under Maltese law, at the time, until the price established is actually paid and the deed of transfer formally published, the expropriation is not considered to have been finalised. 11.     Eventually, the Government announced that the plant in Qajjenza would be phased out and another plant set up in a completely different zone. Given that the applicants’ land had not been formally transferred to the Government and that the expropriation had not been concluded, and in the light of Government’s intention to dismantle the plant in Qajjenza, the applicants took the view that there was no longer any public purpose to be served by the 1978 and 1984 expropriations. 12.     Accordingly, on 1 December 2006 the applicants wrote to the Commissioner of Land, through their lawyer, requesting the land to be returned to them. This letter having remained unanswered, the applicants filed a judicial letter on 27 November 2008 requesting compensation for the occupation of their property during all those years, as well as the return of the property. 13.     As no action was taken in this regard, another letter was sent on 28   July 2009 reiterating the same requests. No reply ensued and no compensation was paid. 14 .     Following a notification to the applicants to this effect, received on 18   April 2012, by means of a Presidential Declaration published in the Government Gazette of 6 June 2012, the Government expropriated two small parcels of the applicants’ land in Qajjenza, namely a parcel measuring 509   sq.m., and a parcel measuring 139 sq.m., both of which formed part of the larger tract of land (B) which was the subject of the original expropriations. The taking was made in pursuance of Section   22 (8) of the Land Acquisition (Public Purposes) Ordinance, Chapter 88 of the Laws of Malta, following the 2002 amendments (see Relevant domestic law), in the light of which ownership of the land was transferred to the State on the day of the declaration. According to the facts set out in the domestic judgments the smaller of those parcels was still being used as a sub-station which served residential and commercial buildings in the area, and on the part measuring 509   sq.m. there was some kind of installation of the plant ( kien hemm xi installazzjoni tal-impjant tal-Enemalta ). 15.     When “re-expropriating” these two parcels of land in 2012, the Government offered EUR 205 for the parcel measuring 509 sq.m., and EUR   58.50 for the parcel measuring 139 sq.m. These values were based on the figures given in 1990 by the LAB which in turn had based itself on the value of the land at the time of the 1978 and 1984 expropriations respectively. According to the Government other considerations also came into play. 16.     The applicants did not accept these amounts by way of compensation. In particular they considered that the two small parcels taken in 2012 had greatly reduced the value of the remaining land given that those parcels cut right across the applicants’ land so that a wedge was taken out of its middle, leaving smaller, irregular, parcels on either side of the expropriated parcels. Thus, the one large and continuous parcel of land owned by the applicants was disrupted. Therefore, in the applicants’ view, it was as though the entire area had been de facto expropriated. 17.     According to the applicants architect’s (C.C.) valuations commissioned by the applicants in 2009, Land A was valued at EUR   4,400,000 (this land was valued as being within the development scheme and as used for industrial purposes) whereas Land B was valued at EUR 970,000 (this land was valued as being partly – a small portion – within the development zone); the loss of rent covering the period from the date of taking to August 2009 was calculated as amounting to EUR   2,140,000 for Land A and EUR 437,000 for Land B. 18.     The plant stopped being in operation in July 2012 and was officially decommissioned in 2013 and dismantled in September 2013. Constitutional redress proceedings First-instance 19 .     The applicants filed constitutional redress proceedings on 20   March 2013 asking the court to declare that their right to the peaceful enjoyment of their property had been violated since the taking of all their land was not in the public interest and the compensation offered to them was disproportionate, given the damage suffered, as it did not reflect the market value of the property. The applicants requested the court to grant all those remedies it deemed necessary and effective in order to redress the violation, and among those remedies the applicants specifically asked the court to annul the judgments given by the LAB on 22 January 1990; to liquidate the proper compensation due to the applicants; or to order the return of the property to the applicants. 20 .     During the course of these proceedings, M.F., a representative of the Commissioner of Lands (hereinafter CoL) testified, on 27 June 2014, that the technical experts showed “them” which areas they were referring to but that Enemalta had not informed “them” of any specific reason as to why they needed the land which was to be the subject of the 2012 declaration. She also confirmed that when the CoL had filed the cases before the LAB (in 1984), to her understanding, in the CoL’s view, the defendants in those cases were the owners of the land or their successor in title. D.A. a representative of Enemalta plc (the user of the land) testified, on 18 October 2013, that he was not aware of the use to be made of the parcel measuring 509 sq.m. which was again expropriated in 2012; he testified that he was only told that Enemalta would proceed to purchase the land, and every time he asked about it he was told that no definitive decision had been taken. J.C., an ex ‑ employee of Enemalta plc (before being succeeded by D.A.), testified on 22   November 2013 that until 2010, when he left his employment, no decision had yet been taken as to what would be the future of the site, and he did not know whether a decision had been taken as to its use at that point (2013). 21 .     Pending these proceedings the Government also brought forward a valuation of the properties in question dated June 2014 which took into consideration the locality, size, state and potential in line with local plans as well as other factors likely to affect its value. According to that report, by the Government’s architect (M.S.), the parcel measuring 509   sq.m. (valued at EUR   205 in the 2012 notice to treat) was worth EUR 14,000 when valued as agricultural land; the parcel measuring 139   sq.m. (valued at EUR 58.50 in the 2012 notice to treat) was worth EUR 4,000 when valued as agricultural land; the remaining parcel measuring 3,337 sq.m. (i.e. Land B, less the two parcels measuring 139   and 509 sq.m.) was worth EUR 97,000 when valued as agricultural land; a parcel measuring 5,213 sq.m. was valued at EUR 140,000 taken as land used for an LPG filling plant; and a parcel measuring 137   sq.m. was valued at EUR 4,000 when valued as barren land. The two latter parcels formed Land A, which was the subject of the declaration of 1978. The report also stated that all the land was being considered as agricultural in terms of law, both on the date when they were taken and on the date of the report (2014). It further specified that on the part measuring 509 sq.m. and the part measuring 5,213 sq.m. (most of Land   A) there was part of the complex that had previously been used for the gas plant ( hemm parti mill-kumpless li kien jintuza bħala impjant tal ‑ gass ). 22.     According to an architect’s (J.S.) valuation prepared on 21   July 2009 for Enemalta plc the total value of land measuring 6,873 sq.m., where part of the Qajjenza plant was located (which measurement excludes the buffer zone), would be worth EUR 900,000 if all the equipment of the plant were to be removed from the site. 23.     According to an architect’s (M.S.) valuation prepared in October 2008, and according to the testimony of the same architect, the total value of the land (measuring 21,828 sq.m.) originally occupied by the plant (excluding the buffer zone) was EUR   16,830,500. The estimate was based on the potential use of the site and similar land value, as sold at the time. According to his report the area which was marked as a white area was within the boundary for development (building scheme) with two policies directly effecting it, the first concerning the relocation of the plant and the second the use of the land thereafter, which was to be predominantly residential. 24.     By a judgment of 29 April 2016 the Civil Court (First Hall) in its constitutional competence, found that the applicants had shown that they were the owners of the land, and that the plant had been dismantled and Enemalta, who was operating from elsewhere, did not know what to do with its site in Qajjenza. It considered that it had to examine separately the expropriations of 1973 and 1984 on the one hand and those of 2012 on the other hand, as they had been taken under different laws. 25.     It held that the takings in 1978 and 1984 (excluding the two small parcels which were the subject of the 2012 re-expropriations) were in breach of Article 1 of Protocol No. 1 to the Convention because no public purpose subsisted once the plant had been dismantled and the authorities never actually expropriated the land (since they had not paid the applicants, nor signed the relevant deed). Thus, the decisions of the LAB had been superseded by the fact that this property was no longer needed. It therefore declared the 1978 and 1984 expropriations (except insofar as they affected those parcels of land re-expropriated in 2012) without effect (but not null) and it ordered the return of the land to the applicants. 26 .     The position was not the same for the two parcels of land expropriated in 2012 under Section 22 (8) of the Ordinance which were being used by Enemalta “for its purposes” ( għall-iskopijiet tagħha ) and which therefore had to be transferred to the Government. The court noted that the public interest behind this expropriation had not been contested within the 21-day limit stipulated in law (Section 6 (2) of the Ordinance). Moreover, the smaller of those parcels was still being used as a sub-station which served residential and commercial buildings in the area, thus these two parcels of land were to be transferred to the Government without prejudice to the applicants’ rights to contest the compensation offered. 27.     It rejected the Government’s objection of non-exhaustion of ordinary remedies which had referred to an application for retrial and an application for fixing a time-limit for the performance of an obligation which were not relevant to the present case. 28.     The court also held that the delay in finalising the 1978 and 1984 expropriations had resulted in a breach of the applicants’ rights under Article   6 of the Convention. 29.     It ordered the Government to pay EUR 15,000 to the applicants by way of compensation for the violation of their rights. No costs were to be paid by the applicants. Appeal 30.     Both the Government and the applicants appealed. In particular the applicants complained about the low award of compensation in view of the amount of years during which the deprivation persisted; and that the expropriation of the smaller parcel of land in 2012, measuring 509   sq.m., had not pursued any public interest, and thus should have also been released together with the rest of the property, as its taking solely served to diminish the value of their entire property. It had also not been correct to find that they could not complain about the latter because they had failed to do so under Section 6 (2) of the Ordinance, since the latter did not provide that the time ‑ limit was to run from the date of notification. 31 .     By a judgment of 25 November 2016 the Constitutional Court held that it was not open to the first court to find a breach of Section   6 as the applicants had not complained about that and therefore it revoked that part of the first-instance judgment. It confirmed the remainder. 32 .     In relation to the upheld violation concerning the larger area of land, in so far as relevant, in dismissing the appeal plea by the Commissioner of Land to the effect that the first court had been wrong in finding that no public interest existed once the plant had been dismantled (in relation to Lands   A and   B), the Constitutional Court reiterated its case-law to the effect that public interest had to persist until the finalisation of the procedure of expropriation. Once it had been established that the land had been taken for the purposes of the gas plant, which was no longer there, it was for the Commissioner of Land to prove that there was still some other public interest. No such proof had been submitted. 33 .     In connection with the same tract of land, it also noted, inter alia , that the establishment of compensation by the LAB did not necessarily satisfy the proportionality requirement. Moreover, the LAB’s order to proceed to transfer the property was not followed and the deed was never signed, with the result that the applicants were still without compensation thirty four years after the taking. Those facts together with the uncertainty within which the applicants found themselves led to a violation of their property rights. 34.     As to the award of compensation of EUR 15,000, which it considered as non-pecuniary damage, and which it confirmed, the Constitutional Court noted that one had to take into consideration the uncertainty in which the applicants had been left over a prolonged period of time, the size of the land and the years during which they had been deprived of it; and also, the fact that the takings of 1978 and 1984 had originally been in the public interest, that the land had been agricultural, as well as the fact that it was now being returned to them. It also noted that in their original application the applicants had requested compensation for the taking or the return of the land. It followed that since the land was returned to them no pecuniary damage was due. 35 .     As to the two smaller portions of land, only one of which had been the subject of the applicants’ appeal, the Constitutional Court held that on the relevant date, in 2012 (since these lands were expropriated under a different law), these were still occupied by Enemalta, in particular on the land measuring 509 sq.m. there was “part of the complex which was previously used as the gas plant” (based on the report of an architect M.S. see paragraph   21 above) and the applicants had not substantiated any abuse by the authorities. The first-court’s decision had therefore been correct. The first-instance court was also correct to find that the applicants had failed to make use of the procedure under Section 6 (2) of the Ordinance, despite being notified two months before the Presidential Declaration of 2012, as admitted in the testimony of T.G. The applicants had thus, at the time, failed to make use of a legitimate remedy to claim that there had been no public interest in accordance with Section 6 (2) of the Ordinance – a choice for which they were responsible. 36.     The Constitutional Court apportioned costs as follows: costs of first-instance were to remain as they had been decided; 4/5 of the costs of the CoL’s appeal were to be borne by the latter and 1/5 by the applicants; costs of the appeal of the applicants were to be borne entirely by them; and 3/4 of the costs of the cross appeal of Enemalta plc were to be borne by the latter and 1/4 by the applicants. Information related to Enemalta 37.     On 6 May 1987 Enemalta Corporation (the predecessor in title of Enemalta plc) purchased from Laylay Company Limited a parcel of land measuring 46,201 sq.m. for the sum of MTL 105,878 (approximately EUR   246,629) the price being established at a rate of MTL   2,576.12 for every 1,124 sq.m. This land was in close vicinity to the land belonging to the applicants. The situation after the Constitutional Court judgment 38.     The land belonging to the applicants was completely abandoned and in a state of dereliction; however all traces of the gas tanks had been removed. Another parcel of land belonging exclusively to Enemalta plc, which is adjacent to the applicants’ land, was also abandoned; only a few dilapidated structures remained and the area was not being used in any manner. No equipment belonging to the original plant remained. 39 .     The plant in the new location had been in operation since July   2013 and was being run by a private company (Liquigas) - not Enemalta plc. 40.     According to the applicants, until the time of the lodging of the application, despite the Constitutional Court judgment, the applicants had not obtained repossession of their land as they had not been granted access to the land which was still sealed off. 41.     An architect’s (P.B.) valuation, carried out on behalf of the applicants, assessed the value of the applicants’ land in 2017 reflecting the loss for the applicants resulting from the 2012 re-expropriations (according to which the expropriation of the triangular parcel of land measuring 509   sq.m. in 2012 adversely affected the remainder of the applicants’ land) in the amount of EUR 1,153,500, based particularly on a projection for development of built up plots on Land A which was within a development zone (according to the Local Plans of 1995). According to the same valuation, the accumulated rental yield from 1978 to 2017 for the land which had been the subject of the 1978 expropriation was EUR 3,476,942 which with a conservative rate of interest of 2.5% amounted to a total loss of EUR   4,248,223. 42.     According to the Government on 6 July 2018 part of Lands A and B (excluding the properties measuring 509 sq.m and 139 sq.m.) was returned to the applicants. In this connection they submitted a copy of a letter from the Board of Governors of the Lands Authority to the Chairman of the Lands Authority confirming that on 6 July 2018 the former had decided to release the property, as well as a declaration, by the Lands Authority, of 7   August 2018, issued in the Government Gazette concerning the release of the land. RELEVANT LEGAL FRAMEWORK The Land Acquisition (Public Purposes) Ordinance 43.     Following amendments in 2002, Sections 6 and 22 (8) of the Land Acquisition (Public Purposes) Ordinance, Chapter 88 of the laws of Malta, in so far as relevant, read as follows: Section 2 “"agricultural or rural land" does not include the domestic garden of a house or building or any other land within the precincts of a house or building nor a building site nor waste land but includes farmhouses, buildings intended mainly for the keeping of store cattle or other domestic animals, and other structures of a kindred nature;” Section 6 “(2) Any person who has an interest in land, in respect of which a declaration of the President as is referred to in subarticle (1) is made, may contest the public purpose of the said declaration before the Land Arbitration Board by means of an application to be filed in the registry of the said Board within twenty-one days from the publication of the said declaration and the provisions of the Code of Organization and Civil Procedure applicable to the hearing of causes before the Civil Court, First Hall, including the provisions regarding appeals from such decisions, shall, mutatis mutandis , apply to the determination of the said application: Provided that the filing of an application in terms of this subarticle shall not hinder the continuance of the expropriation proceedings or the doing of anything that may be done in respect of the land as provided in this Ordinance during the time when the application is still not determined, without prejudice to the right of the applicant to seek compensation in the event that the declaration of the President is found to be without public purpose.” Section 17 “Any land which is not a building site shall be valued for the purpose of determining the compensation payable in the case of compulsory acquisition as rural land or as wasteland, as the case may be: Provided that in determining such compensation, consideration shall be given to the value of any structures existing thereon and whether such structures are covered by a permit according to law.” Section 18 “(1) Land, other than a historical building, shall be deemed to be a building site if it falls within the limits of a building scheme or as indicated and approved for development in a Structure Plan or subsidiary plan which has been adopted for the time being in force under any law relating to planning. (2) In determining the compensation due for a building site, consideration shall be given to the use or development that can be made thereof or thereon in accordance with the provisions of subarticle (1).” Section 18A “Notwithstanding the provisions of this or any other law, the value of any land - ( a )     still in the course of acquisition on the 1st January 2005; ( b )     in respect of which a declaration under article 3 was issued before the 5th March 2003, and ( c )     in respect of which a notice to treat was not issued before the 1st January 2005 under the provisions of this Ordinance as in force before the date mentioned in this paragraph, shall, saving any interests due until payment is made under article 12(3), be its value as on the 1st January 2005.” Section 22 “(8)     Upon the making of a Declaration by the President in accordance with this Ordinance that any land is to be acquired by the absolute purchase thereof, the absolute ownership of the land to which the declaration refers shall be deemed to be a registration area for the purposes of the Land Registry Act and the absolute ownership thereof shall by virtue of this Ordinance and without any further assurance or formality be transferred to and be acquired by the competent authority free and unencumbered from any charge, hypothec or privilege and with all the appurtenances thereof, and the competent authority shall cause such land to be registered in the Land Registry in its name in accordance with the Land Registry Act within three months from the issue of the Declaration of the President.” Section 27 “(1)     Without prejudice to any special provision contained in this Ordinance, in assessing compensation the Board shall act in accordance with the following rules: ( a )     no allowance shall be made on account of the acquisition being compulsory; ( b )     the value of the land shall, subject as hereinafter provided, be taken to be the amount which the land if sold in the open market by a willing seller might be expected to realize: Provided that - (i)     the value of the land shall be the value as at the time when the President’s Declaration was served, without regard to any improvements or works made or constructed thereafter on the said land and where the land was in the possession of the competent authority immediately prior to the service of the President’s Declaration no regard shall be had, in assessing the value of the land, to any improvements or works made or constructed by the competent authority while in possession of the land; (ii)     where a part only of the land belonging to any person is taken under this Ordinance, any enhancement of the value of the residue of the land by reason of the proximity of any improvements or works made or constructed by the competent authority within eighteen months before the publication of the President’s Declaration, or to be made or constructed by the competent authority within eighteen months after the publication of the President’s Declaration shall be taken into consideration; (iii)     the damage, if any, sustained by the owner by reason of the severance of the land from other land belonging to such owner or other injurious effect upon such other land by reason of the exercise of the powers conferred by this Ordinance, shall be taken into consideration; (iv)     where damage has been sustained by reason of any works done in or upon the land, regard shall be had to any increase in the value of the land by reason of any improved drainage and any other advantage derived from any such works; ...” The Government Lands Act 44.     Section 43 of the Government Lands Act, Chapter 573 of the Laws of Malta, of 25 April 2017, reads as follows: “The Chairperson of the Board of Governors of the Lands Authority may at any time revoke any Declaration issued under this Act or before by means of a notice in the Gazette and at least once in two daily or Sunday local newspapers, provided that any revocation shall be registered with the Land Registry and the Public Registry.” THE LAW ALLEGED VIOLATION OF ARTICLE 1 of Protocol n o . 1 to THE CONVENTION 45.     The applicants complained that part of their property (measuring 509   sq.m.) had been expropriated without there being a public interest and they had not been compensated adequately for the 2012 expropriation. The applicants also complained that no compensation had been received for the occupation of the other land which had been given back to them. They thus considered that they remained victims of the violation despite the Constitutional Court judgment in their favour. They relied on Article 1 of Protocol No. 1 which reads as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” The taking from 1978 and 1984 respectively, until 2012, of Land A and most of Land B (excluding the properties measuring 509 sq.m. and 139   sq.m.) The parties’ submissions 46.     The Government submitted that the applicants were no longer victims of the violation as the domestic courts had upheld the violation and ordered the return of the property, which was subsequently released on 6   July 2018. They noted that according to Section 43 of the Government Lands Act (see Relevant domestic law above) there was no obligation to notify the owners other than by publication in the Government Gazette and newspapers. The Government further pointed out that the applicants had asked the domestic courts for compensation or alternatively for the return of the property, and the domestic courts having determined that there was no longer any public interest for the taking of that land, had awarded the latter form of redress, together with an award of EUR 15,000 in non-pecuniary damage. 47.     The applicants complained that they had not been compensated for the use from 1978 and 1984 respectively, until 2012, of most of Land A and B (excluding the properties measuring 509 sq.m. and 139   sq.m.). Moreover, that property had not been effectively released (until the date of lodging the application with the Court) despite the order to that effect by the Constitutional Court which upheld a violation of Article 1 of Protocol No.   1. In their submissions they further challenged the Government’s contention that the property was returned to them in 2018, that is, two years after the Constitutional Court judgment, which itself was not a timely reaction. They noted that they had not been informed of any decision to release the property or of any announcement in the Government Gazette, and that as at the date of submissions (6 November 2019) the land was still sealed off and the boundary walls erected by the authorities had not been dismantled, thus the applicants still did not have access to it. In consequence the applicants considered that they were owed compensation for this ulterior period after 2013 during which the land was held on to despite no use being made of it. 48.     In particular the applicants considered that their claims to the domestic court did not rule out the possibility of obtaining both the return of the property and compensation for its use until then, as they concerned two different scenarios, depending on whether the domestic court considered there was or not a public interest. Moreover, they had requested the court to give any effective and appropriate remedy. Thus, in the applicants’ view the fact that they made no specific reference to compensation for loss of use did not mean that they were not entitled to it. The Court’s assessment 49.     The Court reiterates that an applicant is deprived of his or her status as a victim if the national authorities have acknowledged, either expressly or in substance, and then afforded appropriate and sufficient redress for a breach of the Convention (see, for example, Scordino v.   Italy (no.   1) [GC], no.   36813/97, §§ 178-93, ECHR 2006-V; and B. Tagliaferro & Sons Limited and Coleiro Brothers Limited v.   Malta , nos.   75225/13 and   77311/13, §   55, 11 September 2018). 50.     As regards the first condition, namely the acknowledgment of a violation of the Convention, the Court considers that the Constitutional Court’s findings (see paragraphs 31-33 above) amounted to an acknowledgment that there had been a breach of Article 1 of Protocol No. 1. 51.     With regard to the second condition, namely appropriate and sufficient redress, the Court must ascertain whether the measures taken by the authorities in the particular circumstances of the instant case afforded the applicants appropriate redress in such a way as to deprive them of victim status (ibid. § 57). The Court notes that the Constitutional Court awarded the applicants EUR 15,000 in respect of non-pecuniary damage (from which they had to pay part judicial costs which in the present case were reasonably justified). Moreover, the Constitutional Court ordered the release of the property, namely Land A and the most part of Land B (excluding the properties measuring 509   sq.m. and 139 sq.m.) as requested by the applicants. In the present circumstances and in the light of the documents in the Court’s possession, the Court shares the interpretation of the constitutional jurisdictions that the applicants’ request to release the property was their main request and only alternatively would compensation be required for the use of such land. Indeed, no conditions had been put in relation to this latter alternative. It follows that on the basis of their request, the Constitutional Court awarded adequate redress for the upheld violation and the Constitutional Court’s judgment offered sufficient relief to the applicants. 52.     In so far as the applicants argued that the property had not been released, the Court notes that the Government have substantiated their claim that the property has in fact been released albeit with a significant delay of more than eighteen months. While the applicants had not been served with a notice of release, regrettably the law in force at the time of the release did not require such a notification, nor has it been shown that this was a requirement in the law applicable at the time that the release was ordered by the Constitutional Court. Lastly, in so far as the applicants argue that access is still sealed off as the boundary walls are still in place, the Court observes that, as noted by the applicants, these are only boundary walls and no other installations remain. Moreover, from the aerial photographs submitted by the applicants the boundary walls are in place in only limited parts of the property subject to the return order. Lastly, the applicants being the owners in law, there seems to be no obstacle in them taking any measures necessary to access the land including availing themselves of any ordinary remedies in this respect. 53.     Bearing in mind the above, the Court considers that the second criterion has also been met and the applicants are not continuing to suffer the consequences of the breach upheld by the domestic courts and therefore they have lost victim status in respect of this part of the application. 54 .     This part of the application is therefore incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be declared inadmissible in accordance with Article 35 § 4 of the Convention. The taking lasting from 1978 and 1984 respectively, until 2012, of the applicants’ properties measuring 509 sq.m. and 139 sq.m. The parties’ submissions 55.     The applicants complained in particular that no compensation has ever been awarded in respect of the use of this portion of land for the period until 2012, nor had its return been ordered. They further considered that since the use of the land was for industrial purposes, it should not be valued as agricultural land for the purposes of compensation. In reply to the Government’s allegations, they submitted that all the domestic proceedings had shown that they had title to the property and that they had not been paid over the years for other reasons. 56.     The Government referred overall to the general principles relating to the invoked provision and made submissions concerning the taking of Lands A and B but made no specific submissions related to these two parcels of land save that they were covered by the expropriations of 1978 and 1984 and the respective decisions of the LAB delivered in 1990, which had not been executed because, according to the Government, the applicants had resisted providing proof of title. The Court’s assessment 57.     The Court notes that the domestic courts did not deal with this aspect of the complaint despite the fact that the applicants raised their complaint concerning all the property (see paragraph   19 above), thus the applicants remain victims in this respect. The Court further notes that the Government have not made any relevant submissions in respect of this part of the complaint. The Court finds that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. 58.     The Court observes that the aim of the presidential declarations of 1978 and 1984 was clearly to deprive the applicants of their property. In practice while the Government took possession of the property, they did not finalise the deeds of transfer despite an order to so do by the LAB in 1990. It was only in 2012, following a new declaration under different legislative provisions, that the transfer took place. In that light, it is possible to consider that the interference over the period 1990-2012 went beyond State control of the use of property, verging on what could be equated to a de facto expropriation. 59 .     It is not necessary for the Court to decide whether the interference falls under Article 1 of Protocol No. 1, first paragraph, second sentence (deprivation of possessions), or under Article 1 of Protocol No. 1, second paragraph (control of the use of property). Indeed, the applicable principles are similar for both types of interferences: in addition to being lawful, a deprivation of possessions or an interference such as the control of use of property must also satisfy the requirement of proportionality (see, with respect to a deprivation of possessions, Scordino, cited above, §§   81 and 93; Kozacıoğlu v. Turkey [GC], no. 2334/03, §§ 51, 52 and 63, 19   February 2009; Vistiņš and Perepjolkins v. Latvia [GC], no. 71243/01, §   94, 25 October 2012; and with respect to the control of the use of property Hutten-Czapska v. Poland [GC], no. 35014/97, §§ 163, 164 and 167, ECHR 2006 ‑ VIII, and G.I.E.M. S.R.L. and Others v. Italy [GC], nos.   1828/06 and 2 others, §§ 292-93, 28 June 2018). As the Court has repeatedly stated, a fair balance must be struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights, the search for such a fair balance being inherent in the whole of the Convention. The requisite balance will not be struck where the person concerned bears an individual and excessive burden (see Brumărescu v. Romania [GC], no.   28342/95, § 78, ECHR 1999 ‑ VII; Depalle v. France [GC], no.   34044/02, § 83, ECHR 2010; G.I.E.M. S.R.L. and Others , cited above, §§ 293 and 300; and Saliba and Others v. Malta , no.   20287/10, §§   54-55, 22   November 2011). 60.     It is not disputed that the taking of these parcels of land in 1978 and 1984 respectively was lawful; the Court will therefore not